My one and only comment on the arrest of Henry Louis Gates, Jr.

A few readers have asked whether I might have a comment on the arrest of Professor Gates of Harvard for "disorderly conduct" after someone phoned the police after seeing him and his car service driver forcing open the front door of the house, which was jammed. President Obama, who described the arrest of Professor Gates as "stupid," has now been backtracking, since one is not supposed to criticize the police, apparently, in America. "Stupid" is, I think, a very nice way to put it: I do not see any evidence that the officer was stupid, just arrogant and irritated at being bawled out. Even if one accepts verbatim everything in the police report--and more on that in a moment--it's pretty clear the arrest was unlawful. Why would an intelligent officer make an unlawful arrest? Because he was pissed off at being shouted down and thought he could get away with it, as the police usually do.

In any case, the police simply aren't very credible in circumstances like this, so it would be bizarre to credit the police report in all details: police lie, all the time. I recall a Queens (N.Y.) prosecutor telling me years ago that the police he would have to call as witnesses would openly joke about testifying in court as "testilying." The culture of dishonesty in the service of both commendable (e.g., getting genuine criminals and preserving public safety) and self-serving (e.g., concealing misconduct and allowing the police to trample on those who offend them) ends is, from all the evidence I have seen, absolutely pervasive in American policing, at least in the major urban areas, where the pressures on the police are probably the greatest. (On testilying, see the first few paragraphs here [and citations therein] or this L.A. Time article.) Anyone familiar with police practice in major urban centers knows that "disorderly conduct" is the charge the police always fall back on when they don't have an actual charge to support an arrest. (See the comments of Northwestern law profesor Steven Lubet in this regard.) Some minority of "disorderly conduct" charges are probably legitimate, most are not. Professor Gates acted imprudently, without a doubt, but he was right to be angry, and all the evidence now available strongly suggests the arresting officer acted illegally.

What role did race play in all this? Less, I suspect, than the initial news coverage has suggested (or than this would suggest). The woman who called the police was probably influenced by racial considerations: why are two dark-skinned men forcing their way through the front door of a nice house near Harvard Square? But would she have called the police if two white men were doing the same thing? One hopes so, but who knows? The arresting officer's annoyance at being bawled out may have been exacerbated by the fact that it was an African-American man shouting at him: it's hard to know, we'd have to know a lot more about the officer in question. Police do not like to be berated or challenged, period, and an incident like this should call more attention to police abuse of the charge of "disorderly conduct" as a way of trampling on the First Amendment rights of citizens to challenge police conduct.

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My one and only comment on the arrest of Henry Louis Gates, Jr.

A few readers have asked whether I might have a comment on the arrest of Professor Gates of Harvard for "disorderly conduct" after someone phoned the police after seeing him and his car service driver forcing open the front door of the house, which was jammed. President Obama, who described the arrest of Professor Gates as "stupid," has now been backtracking, since one is not supposed to criticize the police, apparently, in America. "Stupid" is, I think, a very nice way to put it: I do not see any evidence that the officer was stupid, just arrogant and irritated at being bawled out. Even if one accepts verbatim everything in the police report--and more on that in a moment--it's pretty clear the arrest was unlawful. Why would an intelligent officer make an unlawful arrest? Because he was pissed off at being shouted down and thought he could get away with it, as the police usually do.

In any case, the police simply aren't very credible in circumstances like this, so it would be bizarre to credit the police report in all details: police lie, all the time. I recall a Queens (N.Y.) prosecutor telling me years ago that the police he would have to call as witnesses would openly joke about testifying in court as "testilying." The culture of dishonesty in the service of both commendable (e.g., getting genuine criminals and preserving public safety) and self-serving (e.g., concealing misconduct and allowing the police to trample on those who offend them) ends is, from all the evidence I have seen, absolutely pervasive in American policing, at least in the major urban areas, where the pressures on the police are probably the greatest. (On testilying, see the first few paragraphs here [and citations therein] or this L.A. Time article.) Anyone familiar with police practice in major urban centers knows that "disorderly conduct" is the charge the police always fall back on when they don't have an actual charge to support an arrest. (See the comments of Northwestern law profesor Steven Lubet in this regard.) Some minority of "disorderly conduct" charges are probably legitimate, most are not. Professor Gates acted imprudently, without a doubt, but he was right to be angry, and all the evidence now available strongly suggests the arresting officer acted illegally.

What role did race play in all this? Less, I suspect, than the initial news coverage has suggested (or than this would suggest). The woman who called the police was probably influenced by racial considerations: why are two dark-skinned men forcing their way through the front door of a nice house near Harvard Square? But would she have called the police if two white men were doing the same thing? One hopes so, but who knows? The arresting officer's annoyance at being bawled out may have been exacerbated by the fact that it was an African-American man shouting at him: it's hard to know, we'd have to know a lot more about the officer in question. Police do not like to be berated or challenged, period, and an incident like this should call more attention to police abuse of the charge of "disorderly conduct" as a way of trampling on the First Amendment rights of citizens to challenge police conduct.